'Triggering' reform

Schiff says Tribe’s constitutional amendment would help end ‘torrent’ of super PAC funding

After seeking help from eminent constitutional scholar Laurence H. Tribe, Democratic Congressman Adam Schiff last week introduced a constitutional amendment aimed at overturning the US Supreme Court’s decision in the 2010 Citizens United case and other high court precedents that Schiff believes make it impossible to regulate billions of dollars in campaign contributions.

On Monday, Schiff said a Supreme Court ruling issued earlier that day on campaign financing regulations makes his amendment “all the more necessary.” In that case, American Tradition Partnership v. Bullock, the court voted 5-4 to affirm its ruling in Citizens United by striking down a Montana statute limiting corporate campaign spending in state and local elections, according to The Associated Press.

Schiff called the ruling “a grave disappointment.”

“The Supreme Court had the opportunity, as some justices urged, to revisit its disastrous decision in Citizens United in light of the torrent of vast corporate and independent expenditures that have been unleashed since that decision,” Schiff said in a prepared statement issued soon after the ruling. “Instead, the court doubled down on its flawed decision … The tremendous amount of unregulated and often anonymous spending now flooding our elections is the most significant threat to the health of our democracy in decades.”

The veteran lawmaker had come under fire recently by leaders of Occupy Democracy — Pasadena for not supporting House Joint Resolution 90, sponsored by US Rep. Ted Deutch of Florida and co-sponsored by Pasadena Congresswoman Judy Chu, among more than 30 Democrats. HJR 90 gives constitutional rights to individual citizens alone, eliminating the extension of those rights to for-profit corporations. The joint resolution also subjects corporate and private interests to regulation through the legislative process without limiting press freedoms, prohibits private and corporate entities from making campaign contributions and gives “Congress and the states … the power to regulate and set limits on all election contributions and expenditures, including a candidate's own spending, and to authorize the establishment of political committees to receive, spend and publicly disclose the sources of those contributions and expenditures,” according to the resolution. An identical measure is pending in the US Senate, Senate Joint Resolution 33.

Schiff’s more streamlined amendment, as drafted by Tribe, a Harvard Law School professor, provides that “Nothing in this Constitution shall be construed to forbid Congress or the states from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures. Nor shall this Constitution prevent Congress or the states from enacting systems of public campaign financing, including those designed to restrict the influence of private wealth by offsetting campaign spending or independent expenditures with increased public funding.”

Patrick Gavel and Maddie Gavel-Briggs of Occupy Democracy — Pasadena were ecstatic after learning about Schiff’s action. In a letter titled “Aiding and Abetting,” which appeared in the June 7 edition of the Pasadena Weekly, Gavel-Briggs wrote to Schiff that “perhaps the greatest obfuscation comes in your Goldilocks response (either too hot or too cold) to the current amendment drafts. A remedy for this would be simply to draft your own bill; otherwise, support HJR 90 and amend it to make it better. Either way, by sitting and doing nothing, you continue to aid and abet the corporations that are destroying our country.”

“I like to think we lit a fire,” said Gavel-Briggs.

Schiff said he struggled with the issue, but ultimately decided a constitutional amendment was the way to proceed.

“When you open up the amendment process, you open a sort of a Pandora’s Box, but I just think the results of the Citizens United decision, and not just that decision but a whole host of decisions since Buckley, have been so destructive to the democratic process that it does warrant an amendment to the Constitution,” Schiff said the day after introducing his proposed amendment.

Schiff, who served as a research assistant to Tribe while attending Harvard Law School in the mid-1980s, was referring to the 1976 ruling in Buckley v. Valeo, a case in which the Supreme Court upheld limits on campaign contributions, but struck down portions of the law capping independent political expenditures by individuals.

“The growth of the super PACs is just the most recent and disastrous result of a series of Supreme Court decisions that seek to distinguish between contributions to a candidate and direct expenditures that have the same effect,” Schiff was quoted as saying in a separate prepared statement issued June 18 regarding the Citizens United v. the Federal Elections Commission ruling, as well as the Supreme Court’s decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. That 2011 decision struck down an Arizona law allowing public financing of a candidate if their opponent exceeded certain spending limits.

To be enacted, a proposed amendment would have to pass the House and Senate by a two-thirds majority then be ratified by three-fourths, or 38 of the states.

The Citizens United ruling stems from the critical 90-minute documentary “Hillary: The Movie,” about Secretary of State and then-Democratic presidential candidate Hillary Clinton, featuring Dick Morris, Ann Coulter and other right-wing commentators. The film was produced by the politically conservative corporation Citizens United.

The FEC restricted Citizens United from showing the video-on-demand film just prior to the 2008 presidential primary campaign season, according to the Washington Post. The government determined the film violated the Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold Act for its authors Republican US Sen. John McCain of Arizona and former Democratic US Sen. Russ Feingold of Wisconsin. McCain-Feingold restricted campaign spending by corporations and unions.

McCain-Feingold also banned the broadcast of cable or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days prior to presidential primaries and in the 60 days before general elections. The law was narrowed by a 2007 Supreme Court decision that applied to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” The New York Times reported.

The United States District Court for the District of Columbia sided with the FEC in a suit brought by Citizens United. But in 2009, the Supreme Court took up the case, and in January 2010, the justices voted 5-4 to support Citizens United’s claim, saying the case was mainly a First Amendment question of free speech, in the process overturning McCain-Feingold.

The high court was led by Justice Anthony Kennedy, who wrote for the majority that, “The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations — including nonprofit advocacy corporations — either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election,” reported CNN.com. “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

For assistance, Schiff turned to Tribe, one of the nation’s foremost authorities on the Constitution. According to law.harvard.edu, Tribe, the Carl M. Loeb University Professor at Harvard, has written 115 books and articles, including “American Constitutional Law,” which, according to the site, has been “cited more than any other legal text since 1950.”

On June 13, Tribe published an article on Slate.com titled, “The Once-and-for All Solution to Our Campaign Finance Problems.” In the article, Tribe explains his motivation for formulating the “content-neutral” amendment, noting that, “In the two years since the Supreme Court struck down key federal campaign finance restrictions, super PACs have reshaped American democracy.”

For instance, “It’s not an exaggeration to observe that billionaire Sheldon Adelson singlehandedly sustained a floundering presidential campaign through donations to Newt Gingrich’s super PAC. In the 2010 election cycle there were 84 active super PACs; now there are 577. These groups have already spent over $120 million, with plenty more on the way. Wealthy opponents of President Obama, for example, have already committed to spending at least $1 billion, much of it certain to be funneled through shell corporations and other entities, making the donors behind the resulting ads invisible to the electorate, though they’ll be all too visible to the candidates who benefit,” Tribe wrote.

In the article, Tribe, who said the “discontent triggered” by the Citizens United ruling has caused him “to rethink entirely the rules for campaign finance regulation within our constitutional order,” wrote that “[w]hat’s crucial is that regulations treat content neutrally, regardless of whether they address speech itself or the funding of speech, and regardless of the speakers at which they aim.”

Schiff said Tribe’s amendment possesses the “simple elegance” that an addition to the Constitution should reflect.

“I think the problem goes back to Buckley and everything that’s followed since by treating campaign expenditures as inherently different and inherently uncorrupting,” Schiff said. “It has created a whole host of cases that have unleashed this torrent of super PAC spending. So that was the problem that really, I think, needed to be dealt with.”

“None of this would have happened without the media coverage,” said Gavel. “What you are telling us right now [about Schiff’s proposed amendment] is a validation of our work.”

“I hope, in addition to what he has done, he will exercise some leadership and get some more Democrats on board,” said Gavel-Briggs.